Citation NR: 9600665
Decision Date: 01/23/96 Archive Date: 02/07/96
DOCKET NO. 94-01 626 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased evaluation for the residual
of a fracture of the left ankle, currently evaluated as 30
percent disabling.
2. Entitlement to service connection for right hip and back
disability, claimed as arthritis, secondary to residuals of a
fracture of the left ankle.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Tresa Schlecht, Associate Counsel
INTRODUCTION
The appellant had active service from February 1943 to
October 1945. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a December 1991
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Petersburg, Florida, which denied
an increased evaluation for the residuals of a fracture of
the left ankle, currently rated as 30 percent disabling, and
which denied entitlement to service connection for right hip
or back disability, claimed as arthritis, secondary to
residuals of a fracture of the left ankle.
The appellant’s contention that she has a right hip
disability and a back disability secondary to the residuals
of a fracture f the left ankle is addressed in the remand
portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that disability due to the residuals
of a service-connected fracture of the left ankle have
increased in severity, including increased pain and
sensitivity to cold weather and increased difficulty with
ambulation. She contends that she is unable to stand in the
same place for more than 20 minutes.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the evidence supports entitlement to an
increased evaluation for the residuals of a service-connected
fracture of the left ankle, currently rated as 30 percent
disabling.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the claimant's appeal for an increased
evaluation for the residuals of a service-connected fracture
of the right ankle has been obtained by the RO.
2. The appellant’s service-connected left ankle disability
is manifested by inability to dorsiflex, plantar flex, evert,
invert, or rotate the left foot. The appellant’s left heel
is approximately one inch above the surface of the floor when
the appellant stands, so that she bears her weight on the
ball of her foot unless she has shoes on. The appellant is
unable to squat and rise or to stand alone on the left foot.
She limps slightly and uses a cane in her right hand.
3. Residuals of the left ankle fracture more nearly
approximate loss of use of the foot.
4. The residuals of a fracture of the left ankle do not
present an unusual or exceptional disability picture
warranting an extraschedular rating.
CONCLUSION OF LAW
The criteria for a rating of 40 percent are met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.14, 4.40,
4.45, 4.63, 4.71a, Diagnostic Code 5167 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant's claim that her service-connected disabilities
are more disabling than the current evaluation reflects is
well-grounded within the meaning of 38 U.S.C.A. § 5107(a),
which mandates a duty to assist the veteran in developing all
facts relevant to her claim. Littke v. Derwinski, 1 Vet.App.
90, 93 (1990). The evidence of record includes service
medical records, a recent examination dated November 1991 as
well as previous VA examinations of the left ankle, and the
appellant’s testimony at a personal hearing conducted May
1992. The Board is satisfied that all available evidence
necessary for an equitable disposition of the appeal has been
obtained.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Separate diagnostic codes identify the various disabilities.
VA has a duty to acknowledge and consider all regulations
which are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App.
589 (1991). It is essential that each disability be viewed
in relation to its history, and that medical examinations are
accurately and fully described emphasizing limitation of
activity imposed by the disabling condition. 38 C.F.R.
§ 4.1. Medical evaluation reports are to be interpreted in
light of the whole recorded history, and each disability must
be considered from the point of view of the veteran working
or seeking work. 38 C.F.R. § 4.2.
In determining an appropriate evaluation for a disability, VA
applies a schedule of percentage ratings of reduced earning
capacity in civil occupations due to specific injuries or
combination of injuries. 38 U.S.C.A. § 1155; 38 C.F.R.
§ 4.1. A proper rating evaluation of a veteran's disability
contemplates the history of the disability, 38 C.F.R. § 4.1,
and must be considered from the point of view of the veteran
working or seeking work. 38 C.F.R. § 4.2. When evaluating a
disability, any reasonable doubt regarding the degree of
disability is resolved in favor of the claimant. 38 C.F.R. §
4.3. If there is a question as to which of two evaluations
should apply, the higher rating is assigned if the disability
picture more nearly approximates the criteria required for
that rating. Otherwise, the lower rating is assigned. 38
C.F.R. § 4.7.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet.App. 55 (1994). However, in
evaluating service-connected disability, the entire recorded
history of the disability, including medical and industrial
history, is considered, so that the evidence as a whole may
yield a current rating which accurately reflects all elements
of disability, including the effects on ordinary activity.
38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.
In this case, the appellant’s service medical records
document that the appellant sustained a complete dislocation
of the left ankle, including a comminuted fracture of the
distal end of the fibula and compound fractures of the medial
malleolus, left tibia, in July 1944. Arthrodesis of the left
ankle was performed. Arthrodesis is a surgical fixation of a
joint. Dorland's Illustrated Medical Dictionary 148 (27th
ed. 1988). By a rating decision issued in November 1945, the
appellant was granted service connection for the residuals of
a fracture of the left ankle, and that disability was rated
as 50 percent disabling. That disability evaluation was
reduced to 40 percent effective June 1946, and to 30 percent,
the current disability evaluation, effective October 1948.
On VA examination in July 1948, the appellant’s ankle was
found to have been ankylosed in a neutral position, a 90
degree angle. On VA examination in 1985, dorsiflexion and
plantar flexion each was from 0 to 5 degrees. On VA
examination in November 1991, the examiner stated that the
appellant’s ankle was ankylosed, and that the appellant was
unable to dorsiflex, plantar flex, evert, invert, or rotate
the left foot. The examiner noted surgical scars and skin
graft scars at the left ankle. The examiner also found that
the appellant’s left ankle was 10.5 inches in circumference,
compared to a circumference of 9.75 inches in the right
ankle. The examiner also found slight atrophy of the left
calf. The examiner also found that the appellant was unable
to squat or rise from a squatting position, and was unable to
stand on the left foot alone. The examiner found that the
appellant’s weight-bearing was on the ball of her foot when
standing without shoes, with the heel about 1 inch above the
floor. The examiner concluded that the appellant’s left
extremity was shortened.
The appellant’s left ankle disability has been rated as 30
percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code
5271. That Diagnostic Code provides a 20 percent rating for
ankylosis in plantar flexion of less than 30 degrees, with
ankylosis of 30 to 40 degrees in plantar flexion or 0 to 10
degrees of dorsiflexion warranting a 30 percent evaluation.
Id. A 40 percent evaluation is warranted for ankylosis in
plantar flexion of more than 40 degrees or dorsiflexion of
more than 10 percent, or with deformity in abduction,
adduction, inversion or eversion. Here, the medical record
does not show that the appellant meets the criteria for a 40
percent rating, which requires immobility of the joint in a
non-neutral position.
Under Diagnostic Code 5167, a 40 percent rating is assigned
for loss of use of the foot. Loss of use of the foot will be
held to exist when no effective function remains other than
that which would be equally well served by an amputation
stump at the site of election below the knee with use of a
suitable prosthetic appliance. The determination will be
made on the basis of the actual remaining function of the
foot, whether the acts of balance and propulsion, etc., could
be accomplished equally well by an amputation stump with
prosthesis. 38 C.F.R. § 4.63.
In this case, the appellant no longer has motion at the
ankle, which is fixed at the neutral position. Balance is so
affected that she is unable to stand alone on the foot, and
propulsion is so affected that she is unable to squat or rise
from a squatting position. The record does not show that
there is impaired sensation of the foot, but, nonetheless,
the Board finds the evidence to be in relative equipoise as
to whether the function remaining in the foot is such that
the appellant would be equally well served by prosthesis.
Under these circumstances, the benefit of the doubt doctrine
is for application, and we conclude that she has loss of use
of the left foot as a result of the service connected ankle
disability.
There is no evidence that the appellant’s loss of motion of
the left ankle presents such an unusual or exceptional
disability picture that an extraschedular rating in excess of
30 percent is warranted. The appellant testified that she
had difficulty walking, that she was only able to stand in
place for about 20 minutes, and that she was unable to walk
more than two blocks on hard surfaces without stopping to
rest due to pain. The appellant also testified that she
worked full-time until she retired at age 62. She did not
testify that either pain or limitation of motion due to her
ankle disability prevented her from performing any activities
of daily living or affected activities other than ambulation.
She testified that she seldom used oral analgesics and that
she relied on “linaments” for pain relief. The medical
evidence does not reflect recent hospital care for the left
ankle or frequent periods of disability or frequent treatment
for the ankle. The Board concludes that the residuals of a
left ankle fracture do not present an unusual or exceptional
disability picture warranting a still higher rating on an
extraschedular basis.
ORDER
An increased evaluation of 40 percent based on loss of use of
the left foot is granted, subject to the criteria which
govern the payment of monetary benefits.
REMAND
The appellant contends that residuals of a fracture of the
left ankle, including gait impairment, have affected her
right hip and her back. The examiner who conducted a
November 1991 VA examination found that the appellant had
shortening of her left extremity and had mild degenerative
joint disease of the right hip and of the lumbar spine. The
appellant’s claim for service connection for arthritis of the
right hip and knee is a plausible claim, and the duty to
assist requires further factual development to determine
whether residuals of the appellant's left ankle fracture may
be etiologically related to a current right hip or back
disorder. See Magana v. Derwinski, 7 Vet.App. 224 (1994).
Where there is an issue of whether there is a relationship
between a claimed disorder and a service connected
disability, an adequate record should usually include an
opinion as to the whether there is a medical basis for the
claimed relationship. See Moore v. Derwinski, 1 Vet.App. 401
(1991).
Additionally, the Board notes that, while this case was
pending at the Board, the United States Court of Veterans
Appeals held that the term "disability" as used in 38
U.S.C.A. § 1110 and thus, in 38 C.F.R. § 3.310(a), should
refer to "any additional impairment of earning capacity
resulting from an already service-connected condition,
regardless of whether or not the additional impairment is
itself a separate disease or injury caused by the service-
connected condition." Allen v. Brown, 7 Vet.App. 439 (1995).
Under current Court interpretation of those sections, service
connection is warranted when aggravation of a non service-
connected condition is proximately due to or the result of a
service-connected condition. Id. Such decision clearly
presents a change in the interpretation of the applicable
law, which previously required a causal and etiological
relationship between a service-connected disability and a
subsequently developed "secondary disability" in order to
warrant service connection for the latter. Leopoldo, 4
Vet.App. 216 (1993). As such, the RO should readjudicate the
appellant’s claims for service connection for disability of
the right hip and back secondary to a service-connected
disability in light of this interpretation.
According, this case is remanded to the RO for the following
development:
1. The veteran should be afforded a VA
examination by an orthopedic specialist
to determine whether the service
connected left ankle disability caused or
aggravated disabilities of the right hip
and the back. The claims file and a copy
of this remand must be made available to
the examiner. The examiner should
describe both the current left ankle
disability and the current right hip and
back disability, if any. After reviewing
the claims folder and examining the
appellant, responses to the following are
requested:
(A) Was any right hip or back
disability caused by, or the result
of, service connected residuals of a
fracture of the left ankle,
including gait impairment?
(B) Was any right hip or back
disability aggravated by the service
connected left ankle disorder? If
it is determined that there was
aggravation, an opinion as to the
degree of disability over and above
the degree of disability existing
prior to such aggravation is
requested.
The reasoning used by the examiner in
reaching his or her conclusions should be
set forth. If an opinion as to the
relationship between the veteran's left
ankle and right hip or back disorder
cannot be rendered without resort to mere
conjecture, the examiner should so state
in the record. The examination, should
be conducted and reported in accordance
with the guidelines set forth in the VA
Physician's Guide for Disability
Evaluation Examinations.
2. The RO should review the additional
evidence obtained through additional
factual development and readjudicate the
appellant's claim for service connection
of a hip or back disorder secondary to
residuals of a fracture of the left
ankle. This readjudication should
include consideration of the Allen
holding referred to above. If the claims
remain denied, the appellant and his
representative should be provided a
supplemental statement of the case which
includes a summary of the evidence and
applicable laws and regulations. The
appellant and his representative should
be afforded a reasonable opportunity to
respond.
Thereafter, if in order, the case should be returned to the
Board for further appellate consideration. No action is
required of the veteran until he is notified. The Board
intimates no opinion as to the ultimate outcome of this case
by the action taken above.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1994).
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